The High Court
Case Details
- 1 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.11097/2020 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: 1. ABDUL SUBAN SAB S/O LATE ADAM SAB AGED ABOUT 69 YEARS.
Legal Reasoning
2. SMT. SADIKA BI W/O ABDUL SUBHAN SAB AGED ABOUT 64 YEARS. 3. AMEER S/O LATE ADAM SAB AGED ABOUT 49 YEARS. ALL ARE R/O. MADIVALA BEEDI HOLAVANAHALLI HOLAVANAHALLI HOBLI KORATAGERE TALUK TUMKUR DISTRICT-572121. (BY SRI. YASHWANTH NETHAJI N.T. ADV., FOR SRI. K.V. NARASIMHAN, ADV.,) …PETITIONERS AND: IQBAL HUSSEN @ SHAMSHEER S/O MOHAMED KHAJA HUSSEN SAB AGED ABOUT 56 YEARS R/O MADIVALA BEEDI HOLAVANAHALLI HOLAVANAHALLI HOBLI KORATAGERE TALUK TUMKUR DISTRICT-572121. (RESPONDENT SERVED) …RESPONDENT - 2 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRYING TO A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION QUASHING/SETTING ASIDE THE ORDER AT ANNEXURE-E PASSED BY THE LEARNED CIVIL JUDGE AND JMFC AT KORATGERE IN O.S.63/2016 NO.9.3.2020 ON IA NUMBERED NIL AT ANNEXURE-D & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following reliefs: a) Writ in the nature of certiorari or any other writ, order or direction, quashing/setting aside the order at Annexure-E passed by the learned Civil Judge and JMFC at Koratagere in O.S.No.63/2016 dated 09.03.2020 on I.A. numbered NIL at Annexure-D. Grant such other and further relief(s) as this Hon'ble b) Court deems fit, in the circumstances of the case, in the interest of justice and equity. 2. Learned counsel for the petitioners submits that the petitioners are the defendants in O.S.No.63/2016 on the file of the Civil Judge and JMFC, Koratagere (for short, 'the trial Court'). The said suit is filed by the respondent for declaration of easementary rights and permanent injunction. It is submitted that in the said suit, the trial Court granted exparte injunction on 24.03.2016 and issued suit summons to the petitioners returnable by 28.04.2016. The said exparte - 3 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR injunction was extended from time to time and on 04.06.2016 it was extended until further orders. It is submitted that the respondent has filed an application under Section 151 of CPC seeking for police protection based on the exparte order of temporary injunction dated 24.03.2016 and the trial Court, without appreciating the fact that the application filed under Order XXXIX Rules 1 and 2 of CPC is still pending, has proceeded to allow the application by directing the police to give police assistance to implement the temporary injunction granted in favour of the respondent. It is submitted that the trial Court has committed grave error in directing for police protection which is contrary to the settled position of law. In support of his contentions, he has relied on the following decisions: i. H.T.Manjunatha since dead by his lrs and others vs. Uma in W.P.No.5214/2019 disposed of on 18.06.2019. C.Doddasiddaiah & Ors. vs. D.Siddaiah & Ors. ii. reported in ILR 1997 KAR 900. 3. Though the notice on the respondent is served, he remained absent. - 4 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR 4. I have heard the arguments of the learned counsel for the petitioner and perused the material available on record. I have given my anxious consideration to the submissions advanced. 5. The undisputed facts are that the petitioners are the defendants in O.S.No.63/2016 filed by the respondent for declaration of easementary rights and permanent injunction. In the said suit, the respondent-plaintiff has filed an application under Order XXXIX Rules 1 & 2 of CPC and pending consideration of the said application, the trial Court vide order dated 24.03.2016 granted temporary injunction. The operative portion of the said order reads as under. "The defendants are hereby from obstructing the Plaintiff to use 'B' suit schedule property by way of an ex-parte temporary injunction till next date of hearing. restrained Issue T.I. after complying of Order 39 rule 3 of CPC. Issue emergent notice on I.A.No.1 to defendants and suit summons to defendants. Returnable by 28.04.2016" 6. The aforesaid order clearly indicates that the trial Court restrained the petitioners from obstructing the respondent to use 'B' schedule property by way of an exparte temporary injunction till the next date of hearing and issued - 5 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR notice on the application filed under Order 39 Rules 1 & 2 of CPC. The said exparte temporary injunction order was continued and made it until further orders on 04.03.2016. It is not in dispute that the application filed by respondent in I.A.No.1 under Order 39 Rules 1 & 2 of CPC was pending. Pending of the said application, the respondent filed an application under Section 151 of CPC seeking direction to the Circle Inspector of Police, Koratagere police to render police help to the respondent for execution of the temporary injunction granted by the Court. The trial Court considering the said application, allowed the same on 09.03.2020. The trial Court, though recorded the reasons while passing the impugned order, in my considered view the trial Court ought not to have entertained such application when the order passed by it is an exparte temporary injunction and the said order was never made absolute and admittedly, the application of the respondent filed under Order 39 Rule 1 & 2 of CPC is pending. The co-ordinate bench of this Court in the case of H.T.Manjunatha referred supra, has observed as under: "4. Depending upon the nature of the case and the likely legal injury the plaintiff suffers if temporary protection is not granted, the Courts take a decision as to the grant of immediate protection by issuing ex parte orders; in this case - 6 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR too the Court had admittedly granted the ad interim ex parte injunction on 23.10.2017; the same has been extended from time to time and on 28.11.2017 the same is extended until further orders, is also true. But that does not make the said order any the less ex parte. 5. Ordinarily police aid/protection is not extended as a matter of course for enforcing an ad interim order of injunction. This view is supported by various High Court rulings viz., Kochupennu Ambujakshi and others .vs. Veluthakunju Vasu Channar and others [AIR 1993 KERALA 62]; .vs. Durai Kuppuswamy [AIR 2006 MADRAS 186]; S. Kalimuthu .vs. S. Arumugam [1998(3) CTC 579]. No extraordinary circumstances are demonstrated as to why this Court should interfere in the matter." Abdul Sukhure Bhai 7. Similarly, the another co-ordinate bench of this Court in the case of C.Doddasiddaiah referred supra has observed in paragraph Nos.6 & 7 as under: "6. However, as pointed out in Kochupennu Ambujakshi's case, the Court can issue such a direction only after deciding the question of grant of injunction and after hearing the other side as the true picture emerges only after hearing both the sides, therefore, the Courts must be slow to implement the ex-parte orders through the help of police especially when the matter is at the interlocutory stage. In my opinion, there is no bar as such for the Court to implement its orders which is passed after hearing both the parties. I therefore fully share the view expressed by the Kerala High Court in Kochupennu Ambujakshi's case [AIR 1993 KER 62.]. It may be pointed out that the Courts are not helpless to implement their orders. But that does not mean that it gives a stick in the hands of the Trial Court to beat the helpless people by directing the police officers not only to implement the exparte orders of the Court but further directing them to take legal action against the defendant which amounts virtually enforcing coersive action. Such an action is not justified. - 7 - NC: 2025:KHC:21236 W.P. No.11097/2020 HC-KAR 7. The Trial Court, in this case has just done this and nothing more, virtually empowering the police officer to take any action he likes in case of dis-obedience. Such a blanket order of the police officers cannot be allowed to be enforced. However, it is clarified that it is not a permission for the defendant to violate the orders of the Court. It is therefore reasonable under these circumstances to direct the parties to maintain status-quo till the disposal of this application." 8. Keeping in mind the aforesaid enunciation of law, I am of the considered view that the respondent has not made out any extraordinary circumstances to grant police protection to implement the exparte temporary injunction. Hence, the exercise of discretionary power by the trial Court is erroneous and contrary to the settled position of law and call for interference in this petition. Hence, I proceed to pass the following: i. ii.
Decision
ORDER Petition is allowed. The impugned order dated 09.03.2020 passed on I.A. filed under Section 151 of CPC in O.S.No.63/2016 by the Civil Judge & JMFC, Koratagere, is hereby set aside. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 58